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Mar 1, 2018

Power of Attorney for India - Getting advice or listening to rumour

Beware - "word of mouth" is NOT the best advice

The unfortunate reality is that too many people come to us with poorly prepared documents based on incorrect/unreliable advice. Sometimes it's because they cannot get the right advice and sometimes it's simply because they listen to rumour or copy what someone else had done previously. In short, if you choose not to get legal advice from a properly qualified and experienced lawyer in India, you're going to run the risk of wasting your money and your time.

Different Country, Different Laws

There are many important reasons why legal documents should be written or prepared in certain ways, especially if those documents are intended to be legally valid, binding and enforceable. Different countries have different laws (even different states within those countries can have different laws), and so it's important that if you're preparing documents for another country that you get the right legal advice for that country.

Although the laws in India and the convention that it follows are largely the results of the British legal system - and similar to Australia - the laws are not exactly the same. Some people ask us to prepare an Australian legal document for use in India, but that is unlikely to be successful just as if you were to bring an Indian legal document and ask the government or the court in Australia to accept it. Of course, there are some documents that the law will recognise because those documents are valid in their country of origin, but without understanding which documents are valid (and for what reason), you're taking a huge risk in guessing.

Ask the right information from the right source

Sometimes, even legal advice may not be enough depending on the intended use of those documents or what you're supposed to achieve. For example, if you're trying to send banking documents to a bank overseas, you could get legal advice on what those documents should be but you would probably have more success contacting the bank to find out what documents they will accept. The bank may have its own forms and other documents and will not accept any other documents, even if those documents are prepared by your lawyer. If you're trying to submit forms to a government office, you should get the right forms from the relevant government department and check with those government officials as to what formal requirements must be followed rather than consult your lawyer (who may not be familiar with the specific requirements of that government department).

So whether it's a specific form, a type of paper (like stamped paper or bonded paper), a certain format, or necessary wording - starting with the right document is the first step.

Signing the document is only the beginning

Aside from preparing the right document, the other thing you'll need to work out is whether there are any other formalities required to ensure that your document is properly signed. For example, some documents may need witnesses, some documents must be signed or stamped in a certain way, some require photographs or fingerprints, and depending on where the document is going to be used it may also need to be countersigned by the Department of Foreign Affairs and Trade (DFAT) and/or the Indian Consulate/VFS.

As a leading provider of notary public services in Sydney, over the last decade and more, we've assisted many people with notarising their documents for use in India. Interestingly, the numerous variations that we've seen make us question whether there is an actual requirement or whether 'anything official looking' with red stamps and seals is sufficient because that seems to be what has been accepted more often than not. Ultimately, the common requirement for all documents being signed in Australia and sent to India is that those documents must be notarised. This is our service to you.

After we have notarised your documents, we highly recommend scanning your documents and sending it to whoever you're dealing with in India to check whether it's sufficient - and if not, for them to propose what else is required BEFORE you physically send your documents to India. If you send your documents to India without checking only to find out that you needed to do something else with your documents, you would generally need to arrange for your documents to be returned to you or arrange to re-sign and notarise your documents. Accordingly, scanning your documents and checking that it's acceptable is going to save you time and money, and provide you with a peace of mind for processing and eventually returning your documents to India.

Acknowledgements

This blog is supported and maintained by Phang Legal. Phang Legal is a leading provider of notary public services in Sydney. With offices conveniently located in Parramatta, Phang Legal supports and services the Indian community across Sydney with readily available and easily accessible notary public services at highly competitive rates.

Ern Phang is the solicitor director of Phang Legal and a notary public. Ern regularly writes about his experiences as a notary public, including the kinds of problems and solutions that his clients face when sending documents to India.

IMPORTANT: the information in this article is correct at the time of publication, however the law constantly changes. This means you should always refer to the most recent articles because we try to update this blog on a regular basis with the most current information.

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Important Notice

Phang Legal provides notary public services in Sydney. All notary publics with Phang Legal are admitted in New South Wales, Australia and are NOT notary publics admitted in India. Please obtain advice and guidance from your lawyer in India regarding the general acceptance and validity of NSW notarial acts or notarisation by a NSW notary public in India and whether there are additional requirements such as authentication, legalisation and apostille.